Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 1 of 9
`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 1 of 9
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`EXHIBIT 8
`EXHIBIT 8
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 1 of 9
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`EXHIBIT 8
`EXHIBIT 8
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`FITBIT
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`LAUREN KINDLER
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`In the Matter Of:
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`PHILIPS NORTH AMERICA v
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 2 of 9
`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 2 of 9
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`January 27, 2022
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 3 of 9
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`37
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`·1· · · · ·L. KINDLER - CONFIDENTIAL
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`·2· · · ·A.· · I have it up.
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`·3· · · ·Q.· · Okay, great.
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`·4· · · · · · ·Do you recognize this document?
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`·5· · · ·A.· · Yes.· This looks like the
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`·6· ·electronic version of my report.
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`·7· · · ·Q.· · And your report is directed to
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`·8· ·what?
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`·9· · · ·A.· · My report on damages.
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`10· · · ·Q.· · Okay, thank you.
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`11· · · · · · ·So if you would look at page 3,
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`12· ·your hard copy or electronic, whatever is
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`13· ·easiest.
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`14· · · ·A.· · Are we talking page numbers or
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`15· ·PDF?
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`16· · · ·Q.· · You know, we're going to go page
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`17· ·numbers for your report.· For Exhibit 2, I
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`18· ·will mention the PDF number.· So sorry for
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`19· ·the -- all right, so page 3 of the report,
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`20· ·paragraph 8.
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`21· · · ·A.· · Okay.
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`22· · · ·Q.· · So you just had testified that
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`23· ·you had spoke with people at Fitbit and
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`24· ·they were listed in your report.
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`25· · · · · · ·So I'd like to go through the
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 4 of 9
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`38
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`·1· · · · ·L. KINDLER - CONFIDENTIAL
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`·2· ·people you've identified in paragraph 8.
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`·3· ·And I will first apologize, I do not know
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`·4· ·how to say your first person's name,
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`·5· ·Mr. Gilles Boccon-Gibod?
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`·6· · · ·A.· · I think it's Boccon-Gibod.· It's
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`·7· ·B-O-C-C-O-N, dash, G-I-B-O-D, for the
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`·8· ·record.
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`·9· · · ·Q.· · So what did you speak to
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`10· ·Mr. Boccon-Gibod about?
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`11· · · ·A.· · At a high level, we spoke about
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`12· ·the accused functionality and
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`13· ·design-arounds or non-infringing
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`14· ·alternative ways that Fitbit could still
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`15· ·offer the accused functionality, but not
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`16· ·implicate the patent.
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`17· · · ·Q.· · Do you recall how long you spoke
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`18· ·with him about this topic?
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`19· · · ·A.· · I would think it was probably
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`20· ·around 30 to 45 minutes.
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`21· · · ·Q.· · Was it a single conversation or
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`22· ·several conversations?
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`23· · · ·A.· · It would have been a single
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`24· ·conversation.
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`25· · · ·Q.· · Do you recall when this
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 5 of 9
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`39
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`·1· · · · ·L. KINDLER - CONFIDENTIAL
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`·2· ·conversation took place?
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`·3· · · ·A.· · Not exactly, but it would have
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`·4· ·been in the weeks leading up to issuing my
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`·5· ·report.· So probably time in early to mid
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`·6· ·December.· That's when all of these
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`·7· ·conversations would have been had.· They
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`·8· ·were.· My memory is that they were in days
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`·9· ·of each other, they all occurred pretty
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`10· ·close together.
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`11· · · ·Q.· · Do you recall what order you
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`12· ·spoke to the five individuals listed in
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`13· ·paragraph 8?
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`14· · · ·A.· · I do with respect to three of
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`15· ·them and I can say which of those three
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`16· ·are, but I'm not sure about one.· So I
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`17· ·spoke to Gilles first and then I would have
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`18· ·spoke to Robert or Buddy Herkenham.· And
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`19· ·then I would have spoken, after that, to
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`20· ·Dave Quong.
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`21· · · · · · ·What I don't recall is somewhere
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`22· ·in there I also spoke with Ms. Preethi
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`23· ·Mukundan, and I just don't recall the order
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`24· ·of that one.
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`25· · · ·Q.· · Okay.
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`
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 6 of 9
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`40
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`·1· · · · ·L. KINDLER - CONFIDENTIAL
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`·2· · · · · · ·So other than your conversation
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`·3· ·with Mr. Boccon-Gibod, it was limited to, I
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`·4· ·think you phrased as available
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`·5· ·non-infringing alternatives or
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`·6· ·design-arounds?
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`·7· · · · · · ·Was there any other topic or was
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`·8· ·that the scope?
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`·9· · · ·A.· · I mean, I think I also mentioned
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`10· ·just generally talking about the accused
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`11· ·functionality.· That's what's coming to
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`12· ·mind.· I don't want to limit it to just
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`13· ·that.· Anywhere in my report where I relied
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`14· ·on information from him, there would be a
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`15· ·footnote indicating that.· So there could
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`16· ·be one or two other minor things, I just
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`17· ·don't recall.· But that was the main
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`18· ·discussion topic.
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`19· · · ·Q.· · And did you identify the four
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`20· ·people from Fitbit as people you wanted to
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`21· ·talk to or were they identified for you?
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`22· · · ·A.· · The actual individuals were
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`23· ·identified for me.· What I would have
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`24· ·identified is I want to speak to someone
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`25· ·about marketing of the features and whether
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 7 of 9
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`41
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`·1· · · · ·L. KINDLER - CONFIDENTIAL
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`·2· ·or not the accused functionality is
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`·3· ·marketed by Fitbit and then they
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`·4· ·identified, counsel identified Ms. Preethi
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`·5· ·Mukundan that could address that topic.
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`·6· · · · · · ·So, I would put forward a topic
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`·7· ·that I wanted to speak to someone at Fitbit
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`·8· ·about, and then counsel would identify the
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`·9· ·appropriate person.
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`10· · · ·Q.· · And when you were speaking with
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`11· ·Mr. Boccon-Gibod about accused
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`12· ·functionality as well as possible
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`13· ·non-infringing alternatives, did you verify
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`14· ·anything he told you in documents or any
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`15· ·other support for information you received
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`16· ·in the conversation?
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`17· · · ·A.· · So I think the verification would
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`18· ·be with respect to Dr. Paradiso, the
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`19· ·technical expert, and also I did discuss
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`20· ·the proposed non-infringing alternatives
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`21· ·with him.· I'm obviously not a technical
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`22· ·expert, so that would be kind of the scope
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`23· ·of my due diligence is hearing it from the
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`24· ·client, understanding what it would take to
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`25· ·implement the non-infringing alternative,
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 8 of 9
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`42
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`·1· · · · ·L. KINDLER - CONFIDENTIAL
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`·2· ·understanding what implications there would
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`·3· ·be of the user the Fitbit device, if any,
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`·4· ·understanding the cost that would be
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`·5· ·required, and then separately kind of
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`·6· ·confirming with Dr. Paradiso that these
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`·7· ·would, in fact, be non-infringing
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`·8· ·alternatives.
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`·9· · · ·Q.· · And going to the next person that
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`10· ·you talked to, Mr. Robert Buddy Herkenham,
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`11· ·what did you speak with Buddy about?
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`12· · · ·A.· · So Buddy and I discussed, again,
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`13· ·the non-infringing alternatives but more
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`14· ·specifics around how Fitbit would have gone
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`15· ·about implementing them, what type of
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`16· ·software or other engineers would be
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`17· ·required in the process, how much time it
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`18· ·would take.· So he was the one that
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`19· ·provided more details around how Fitbit
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`20· ·would actually go about implementing the
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`21· ·alternatives.
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`22· · · ·Q.· · Do you recall how many
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`23· ·conversations you had with Mr. Herkenham?
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`24· · · ·A.· · I think it was just one as well
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`25· ·and it would have been around -- that one
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`Case 1:19-cv-11586-FDS Document 319-8 Filed 02/23/22 Page 9 of 9
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`43
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`·1· · · · ·L. KINDLER - CONFIDENTIAL
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`·2· ·might have been a little longer because we
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`·3· ·actually got into some details, but
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`·4· ·probably around 45 minutes.
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`·5· · · ·Q.· · And then Mr. David Quong, who is
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`·6· ·listed as the finance director, what was
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`·7· ·the nature of your conversation with
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`·8· ·Mr. Quong?
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`·9· · · ·A.· · So once I had spoken with Gilles
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`10· ·and with Buddy and had a sense of the
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`11· ·design-arounds and the people that would be
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`12· ·required in terms of level of engineer,
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`13· ·then I spoke with Mr. Quong about the
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`14· ·salaries and -- really just salary
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`15· ·information for those individuals.
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`16· · · · · · ·So he was able to pull from 2016
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`17· ·which is when these design-arounds would
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`18· ·have been implemented, if necessary, he
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`19· ·pulled salary information for each level of
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`20· ·engineer that was identified by Buddy and
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`21· ·we discussed, you know, how he pulled that
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`22· ·information, were they fully loaded with
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`23· ·respect to all of the related costs, that
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`24· ·type of thing.
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`25· · · ·Q.· · Do you know if that salary
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